America may be about to find out the answer to a question that has vexed constitutional scholars for decades: what do Justice Antonin Scalia and the rest of the Supreme Court justices think about boobies?
A Pennsylvania school district announced this week that it will appeal a decision by the U.S. 3rd Circuit Court of Appeals holding that the district cannot ban breast cancer awareness bracelets bearing the phrase “I (heart) Boobies!”
The Easton Area School District school board approved the appeal by a vote of 7-1, reports The Express-Times.
Easton Area solicitor John Freund will now take the case to the highest court in the land — at a cost ranging between $2,000 and $3,000 (to be paid by covered by the district’s insurer).
The chances that the Supreme Court will accept the appeal are not good. The Supremes receive about 10,000 petitions for a writ of certiorari each year. From those petitions, the Court usually selects fewer than 80 cases.
Nevertheless, school district officials are hopeful, and serious.
“The Third Circuit Court has compromised administrators’ abilities to intervene in what is and what is not appropriate in school,” Superintendent John Reinhart told the Express-Times.
Freund said he believes the case stands a “reasonable chance of being selected.” He added that a number of organizations have endorsed the appeal including the National School Boards Association and the National Association of School Psychologists.
Board member Baron Vanderburg was among the seven supporters of the appeal.
“We as a whole feel like it was the right thing to do,” he told The Express-Times.
The lone school board dissenter, Frank Pintabone, just wants to move on.
“I think we should be done with it. Let it go,” he told the local newspaper. “We lost 20, 30 times, I don’t even know anymore.”
The “I (heart) Boobies!” litigation has been going on for almost three years. (RELATED: Full federal appeals court hears arguments in ‘I (Heart) Boobies!’ bracelets case)
It all started in 2010 when two students at Easton Area Middle School, 15-year-old Brianna Hawk and 14-year-old Kayla Martinez, defied a previously-imposed ban and wore the bracelets — distributed by the Keep A Breast Foundation — on school premises.
The female students have said they only wanted to show their support for breast cancer awareness.
School officials responded by suspending the students for a day and a half and prohibiting their attendance at a school dance.
The American Civil Liberties Union of Pennsylvania intervened on behalf of the girls, arguing that the punishments violated the free speech rights of the middle schoolers under the Constitution.
This week, Freund told The Express-Times that the school board and school officials are “concerned about the implications of a hyper-sexualized environment.” He made the same argument to the Third Circuit.
However, ACLU attorney Mary Catherine Roper has charged that school officials conveniently changed their objection to the bracelets. The initial problem with the bracelets was their “cutesy” nature. Only later did sexual meaning become an issue.
Roper told TheDC that the school district seems to view middle school boys as incorrigibly childish and essentially impossible to manage.
“The school district has this fixation that boys can’t handle anything,” she said. “The school district attorney talks about this boiling cauldron of hormones that happens to be in seventh and eighth grade.”
According to Roper, middle school officials have suggested that the bracelets were the cause of some groping by some middle-school boys. However, she notes, school officials testified in their depositions — under oath — that there was no groping.
During oral arguments before the Third Circuit, the chief judge expressed annoyance when Freund and the grown men and women in the audience laughed about a particular booby-related comment. He told Freund the bracelet-wearing students wanted to “remove the stigma of breasts that you seem to be reading into the message. I suggest your chuckle is less mature than the conduct of these kids here.”